Title 42 of the Public Health Service Act gives federal health officials unique powers during a pandemic to take extraordinary measures to limit transmission of an infectious disease. Since the order went into effect on March 20, nearly 150,000 people — including at least 8,800 unaccompanied children who are normally afforded special legal protections under federal law — have been sent back to their countries of origin without normal due process. Many have been returned to dangerous and violent conditions in El Salvador, Honduras and Guatemala.
Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project described the order as “a complete bypass of the entire asylum system and the system protecting unaccompanied children."
“That is what the Trump administration has been trying to do for four years and they finally saw a window,” he added.
The top Centers for Disease Control and Prevention doctor who oversees these types of orders had refused to comply with a Trump administration directive saying there was no valid public health reason to issue it. Public health experts say the administration’s pattern of dismissing science-based decision making in favor of political goals.
Public health experts had urged the administration to focus on a national mask mandate, enforce social distancing and increase the number of contact tracers to track down people exposed to the virus.
But Stephen Miller a top aide to President Donald Trump who has been a vocal opponent of immigration, pushed for the expulsion order.
“That was a Stephen Miller special. He was all over that,” said Olivia Troye, a former top aide to Pence, who coordinated the White House coronavirus task force. She recently resigned in protest, saying the administration had placed politics above public health. “There was a lot of pressure on DHS and CDC to push this forward.”
Miller started his campaign for the order by button-holing the coronavirus task force staff to try to get the issue on its agenda, according to Troye. The task force did not take the issue up immediately, said Troye. The administration had already passed a nonessential travel ban, which public health experts had largely supported. The CDC spurned Miller’s idea, too. In early March the agency’s Division of Migration and Quarantine, led by Dr. Martin Cetron, refused to support the order because there was not a strong public health basis for such a drastic move
Undeterred, they turned to lawyers at CDC’s parent agency, the Department of Health and Human Services, and U.S. Customs and Border Protection. In a call with CDC’s senior leadership, attorneys for both agencies urged CDC to use its public health authority to turn people back at the borders. By mid-March, CDC’s scientists still refused to comply.
“The decision to halt asylum processes ‘to protect the public health’ is not based on evidence or science,” wrote Dr. Anthony So, an international public health expert at Johns Hopkins Bloomberg School of Public Health, in a letter to Redfield in April. “This order directly endangers tens of thousands of lives and threatens to amplify dangerous anti-immigrant sentiment and xenophobia.”
Vice president Pence, who had taken over the Trump administration’s response to the growing pandemic, called Dr. Robert Redfield, the CDC’s director, and told him to use the agency’s special legal authority in a pandemic anyway. Redfield immediately ordered his senior staff to get it done. A Homeland Security lawyer wrote the order and submitted it to Redfield, who reviewed it and signed it. Trump described the order as originating at CDC, when it had not.
It’s a great — it’s a great feeling to have closed up the border," Trump said in August
“They forced us," said a former health official involved in the process. "It is either do it or get fired.”
“I don’t know how you could look another CDC scientist in the eye after doing this," Dr. Josh Sharfstein, a former FDA deputy commissioner and a Johns Hopkins professor, said of Redfield. “It’s undermining the purpose of having an agency that uses evidence to protect public health. It’s a profound dereliction of duty for a CDC director.”